The Canadian Portrait Gallery - Volume 3 (of 4)

He arrived in Upper Canada early in June. He was delighted with the appearance of the country, and pronounced it "the most desirable place of refuge for the redundant population of Britain." A man with an eye for abuses, however, could not be long in Upper Canada in those days without being greatly dissatisfied with the management of public affairs. He formed the acquaintance of Mr. Barnabas Bidwell, the father of Marshall Spring Bidwell, and received from that gentleman a great deal of valuable information respecting Canadian history and statistics. He also derived from him a tolerably accurate notion of the evils arising from an irresponsible Executive and the domination of the Family Compact. He found the management of the Crown Lands and the Clergy Reserves in the hands of a selfish and grasping oligarchy, who cared very little for the advancement of the country, and whose attention was chiefly directed to enriching themselves at the public expense. There was corruption everywhere, and some of the officials did not even deem it necessary to veil their unscrupulousness. With such grievances as points of attack, Robert Gourlay was in his element, and he soon began to make his presence felt. He determined to engage in business as a land-agent, and to set on foot a gigantic scheme of emigration from Great Britain to Canada. As we have seen, he had obtained much statistical information from Mr. Bidwell. With a view to supplementing this knowledge, and making the condition of the Upper Province known to the world, he addressed a series of thirty-one questions to the principal inhabitants of each township. Looking over these questions at this distance of time, the reader, unless he be minutely acquainted with the state of affairs in Upper Canada in 1817, will be amazed to think that the seeking for such information should have been regarded by any one as criminal or objectionable. Not one of the questions is unimportant, and the answers, taken collectively, form a photographic representation of the condition of the country which could not readily have been obtained by any other means. They relate to the date of settlement of the various townships; the number of people and inhabited houses; the number of churches, meeting houses, schools, stores, and mills; the general character of the soil and surface; the various kinds and quantities of timber and minerals; the rate of wages; the cost of clearing the land; the ordinary time of ploughing and reaping; quality of pasture; average crops; state of public highways; quantity and condition of wild lands; etc., etc., etc. It will be observed that information relating to such matters was of the utmost importance to the public, and more especially to persons in Great Britain who were desirous of emigrating to Canada. It is also apparent that the particular questions propounded by Mr. Gourlay had no direct bearing upon politics. The stinger, however, was the thirty-first question, which was in the following words: "What, in your opinion, retards the improvement of your township in particular, or the Province in general, and what would most contribute to the same?" In the phraseology of this momentous question, it is not difficult, we think, to detect the cunning hand of Barnabas Bidwell.

Readers of "Little Dorrit" cannot have forgotten the dread and horror of the brilliant young gentleman of the Circumlocution Office, when Mr. Arthur Clennam "wanted to know, you know." He regarded the querist as a dangerous, revolutionary fellow. The horror of Barnacle Junior, however, was not one whit more pronounced than was that of the ruling faction in Upper Canada when this other dangerous, revolutionary customer put forth his famous thirty-one queries. "Upon my soul, you mustn't come into the place saying you want to know, you know. You have no right to come this sort of move." Such was the language of the heir of Mr. Tite Barnacle, and it faithfully mirrors the sentiments of the Canadian oligarchy and their hangers-on towards Mr. Gourlay in the year of grace 1817. Most of them had a pecuniary interest in preserving the existing state of things undisturbed. No taxes were imposed on unsettled lands, and a goodly portion of the Upper Canadian domain was in the hands of members of the Compact and their favourites. Being exempt from taxation, these lands were no expense to the proprietors, and could be held year after year, until the inevitable progress of the country and the labours of surrounding settlers converted the pathless wilds into a valuable estate. If this man Gourlay were allowed to go on unchecked, they would be compelled either to pay taxes or to throw their lands into the market. It was imperative for their selfish interests that he should be silenced. Strenuous exertions were made to prevent the persons applied to from furnishing any answers to the thirty-one queries. In many cases the exertions were successful, for the faction had various means of bringing influence to bear, and were not backward in employing them. The Home District, including the counties of York and Simcoe, contained numerous large tracts of land forming what is now the most valuable part of the Province, but which were then lying waste for want of settlement. The owners were in nearly every instance subject to Compact influence. They would not sell at any price, and the country was kept back. Owing chiefly to the efforts of Dr. — afterwards Bishop — Strachan, not a single reply was received by Mr. Gourlay from this District. Many replies came in from other parts of the Province, but in a few instances the stinging thirty-first question was ignored or left unanswered. In cases where it was replied to, the almost invariable tenor of the reply attributed the slow development of the townships to the Crown and Clergy Reserves, and to the immense tracts of land held by non-residents. A reply received from Kingston may be taken as a sample of the prevalent sentiment in the frontier townships wherein public opinion was unshackled. It says: "The same cause which has surrounded Little York with a desert creates gloom and desolation about Kingston, otherwise most beautifully situated; I mean the seizure and monopoly of the land by people in office and favour. On the east side, particularly, you may travel miles together without passing a human dwelling. The roads are accordingly most abominable to the very gates of this, the largest town in the Province; and its market is supplied with vegetables from the United States, where property is less hampered, and the exertions of cultivators more free."

But at this juncture, Mr. Gourlay's unfortunate faculty for putting himself in the wrong asserted itself, and seriously retarded his efforts for the public good. His pugnacity, querulousness and egotism displayed themselves in various ways, and rendered him offensive even to many persons who would willingly have been his friends. He wrote violent letters to the newspapers, wherein Dr. Strachan and everybody else connected with the Executive were stigmatized in terms of which no sober-minded citizen could approve. The Reverend Doctor was referred to as "a lying little fool of a renegade Presbyterian." Other prominent personages came in for scurrility equally coarse. This sort of writing, however, was not without its effect upon a certain class of minds, more especially as the grievances complained of were patent to all the world. A feeling of hostility against those in authority began to make itself apparent throughout the Province, and at the next meeting of the Legislature the Assembly passed a vote in favour of a commission of inquiry into the state of public affairs. The Family Compact were alarmed, and before any steps could be taken towards entering upon the proposed inquiry they prevailed upon the Governor, Francis Gore, to prorogue the House. For this prorogation there was not the slightest legitimate ground, as a great deal of the public business was necessarily left unfinished. The alleged pretext for the step — a dispute with the Legislative Council — was not looked upon with more favour than the act itself, for the dispute was believed to have been artificially fermented with a view to lending some sort of colour to the prorogation. The popular discontent was very great, and made itself heard in unexpected quarters. Mr. Gourlay eagerly availed himself of this discontent, and suggested through the public press that a convention should be held at York, for the purpose of drafting a petition to the Imperial authorities. He himself drafted a petition to the Prince Regent as a basis, to be approved of by the proposed convention. The manuscript was submitted to a meeting of sixteen respectable persons, among whom were six magistrates. These gentlemen approved of the contents, and had the entire petition printed in pamphlet form. Several thousand copies of it were gratuitously circulated throughout the Province, and it was also placed on sale in book-stores in the various towns and villages. Its contents produced considerable effect on the public mind, which had become thoroughly aroused. The people caught at the suggestion of a convention, which was in due course held; but in the meantime the Executive had also become thoroughly alarmed, and they now determined that this interloping Mr. Gourlay should be silenced or got rid of. They bestirred themselves to such good purpose that the action of the convention came to nothing, it being arranged that the subject-matter of the petition should be inquired into by the Lieutenant-Governor and the House of Assembly. The Executive next instituted proceedings against Mr. Gourlay. In the draft petition published by him, there was a passage which reflected very strongly upon the way in which the Crown Lands were administered. As there is no more faithful picture of the state of the Province to be found, and as the work containing it has long been practically unprocurable for general readers, we reproduce the passage entire: "The lands of the Crown in Upper Canada are of immense extent, not only stretching far and wide into the wilderness, but scattered over the Province, and intermixed with private property, already cultivated. The disposal of this land is left to Ministers at home, who are palpably ignorant of existing circumstances; and to a Council of men resident in the Province, who, it is believed, have long converted the trust reposed in them to purposes of selfishness. The scandalous abuses in this department came some years ago to such a pitch of monstrous magnitude that the Home Ministers wisely imposed restrictions on the Land Council of Upper Canada. These, however, have by no means removed the evil; and a system of patronage and favouritism, in the disposal of the Crown lands, still exists, altogether destructive of moral rectitude, and virtuous feeling, in the management of public affairs. Corruption, indeed, has reached such a height in this Province, that it is thought no other part of the British Empire witnesses the like; and it is vain to look for improvement till a radical change is effected. It matters not what characters fill situations of public trust at present — all sink beneath the dignity of men — become vitiated and weak, as soon as they are placed within the vortex of destruction. Confusion on confusion has grown out of this unhappy system; and the very lands of the Crown, the giving away of which has created such mischief and iniquity, have ultimately come to little value from abuse. The poor subjects of His Majesty, driven from home by distress, to whom portions of land are granted, can now find in the grant no benefit; and Loyalists of the United Empire — the descendants of those who sacrificed their all in America in behalf of British rule — men whose names were ordered on record for their virtuous adherence to your Royal Father — the descendants of these men find now no favour in their destined rewards; nay, these rewards, when granted, have, in many cases, been rendered worse than nothing; for the legal rights in the enjoyment of them have been held at nought; their land has been rendered unsaleable, and, in some cases, only a source of distraction and care. Under this system of internal management, and weakened from other evil influences, Upper Canada now pines in comparative decay; discontent and poverty are experienced in a land supremely blessed with the gifts of nature; dread of arbitrary power wars, here, against the free exercise of reason and manly sentiment; laws have been set aside; legislators have come into derision; and contempt from the mother country seems fast gathering strength to disunite the people of Canada from their friends at home."

This passage was fastened upon as libellous, and a criminal prosecution was set on foot against the author. He was arrested, and on the 14th of August, 1818, thrown into jail at Kingston, where he remained until the day of his trial, which was the 20th. He conducted his own defence, and, although the Attorney-General, John Beverley Robinson, pressed hard for a conviction, he was triumphantly acquitted. A few days afterwards he was again arrested and placed on trial at Brockville for another alleged libel contained in the petition. He was once more successful in securing his acquittal. These triumphs roused his egotism to a high pitch. He became for a time a sort of popular idol, who had suffered grievously for endeavouring to obtain justice for the people. Public meetings and banquets were held in his honour, and he was in his element. His complacency, however, was doomed to receive a severe check. The Compact, with Dr. Strachan at their head, finding it impossible to convict him of libel, resolved that he should literally be driven out of the country. He was represented to the public as a man of desperate fortunes and vicious character. Rumours were set afloat that he entertained projects of rebellion, and that he had attended a treasonable meeting in England prior to his arrival in Canada. As matter of fact, Mr. Gourlay, both then and throughout the whole course of his life, was a loyal man, but his effervescing radicalism seemed to lend some sort of colour to the accusation. The word "convention," too, under which name the meeting at York had been summoned, and which word was often in Mr. Gourlay's mouth, had a republican sound about it which was not grateful to the ears of the loyal Upper Canadians. The Assembly also modified its hitherto kindly feelings towards him, and regarded the holding of "conventions" as an unconstitutional infringement of its own prerogatives. In the meantime Sir Peregrine Maitland had succeeded to the Lieutenant-Governorship. It was a matter of course that he should have no sympathy with a man of Mr. Gourlay's views, and the latter had prejudiced the new Lieutenant-Governor against him by a foolish letter, in which he had offered to wait upon the representative of royalty and give him the benefit of his knowledge and experience of Canadian affairs. When Parliament met on the 12th of October, the Lieutenant-Governor's speech contained a sentence that was well understood to be levelled directly at Gourlay. "In the course of your investigations," — so ran the sentence — "you will, I doubt not, feel a just indignation at the attempts which have been made to excite discontent, and to organize sedition. Should it appear to you that a convention of delegates cannot exist without danger to the Constitution, in framing a law of prevention your dispassionate wisdom will be careful that it shall not unwarily trespass on the sacred right of the subject to seek a redress of his grievances by petition." This cunningly-constructed sentence, in which the hand of Dr. Strachan is sufficiently apparent, was well calculated, not only by its characterization of Mr. Gourlay's projects, but by its covert flattery of the Assembly, to increase the hostility of the latter against the former. And thus the injudicious champion of popular rights found himself in conflict with the entire Legislature. The Assembly — the special guardian of popular rights — in its reply to the speech of the Lieutenant-Governor, even went so far as to use these words: "We lament that the designs of one factious individual should have succeeded in drawing into the support of his vile machinations so many honest men and loyal subjects of His Majesty." Two or three weeks later, a Bill was introduced and passed to prevent the holding of conventions. It was introduced by Mr. Jonas Jones, the member for Leeds, a man whose public career and conduct, as Mr. Lindsey truly remarks, present as few points on which admiration can find a resting-place as any Canadian politician of his time.¹⁴ It was significant of the state of public opinion that only one vote was recorded against this measure. It was equally significant of the fluctuating nature of public opinion that when the Act was repealed, two years later, there was only one vote recorded against the repeal. In the latter instance the dissenting vote was given by the Attorney-General, Mr. John Beverley (afterwards Chief Justice) Robinson.

A good many people still championed Mr. Gourlay's cause, but they were for the most part unconnected with politics, and unable to materially assist him when he stood most in need of powerful aid. The time of his chastening was near at hand. By a statute passed on the 9th of March, 1804, known as "the Alien Act," and intended to check the designs of disloyal immigrants from Ireland and the United States, authority was given to the Governor, Lieutenant-Governor, members of the Legislative and Executive Councils, and to the Judges of the Court of Queen's Bench, to issue a warrant for the arrest of "any person or persons not having been an inhabitant or inhabitants of this Province for the space of six months next preceding the date of such warrant... or not having taken the oath of allegiance... who by words, actions, or other behaviour or conduct, hath or have endeavoured, or hath or have given just cause to suspect that he, she, or they, is or are about to endeavour to alienate the minds of His Majesty's subjects of this Province from his person or government, or in any wise with a seditious intent to disturb the tranquillity thereof, to the end that such person or persons shall forthwith be brought before the said person or persons so granting such warrant;.. and if such person or persons.. shall not give.. full and complete satisfaction that his, her, or their words, actions, conduct, or behaviour had no such tendency, or were not intended to promote or encourage disaffection.. it shall and may be lawful.. to deliver an order or orders, in writing, to such person or persons... requiring of him, her, or them, to depart this Province within a time to be limited by such order or orders, or if it shall be deemed expedient that he, she, or they, should be permitted to remain in this Province, to require from him, her, or them, good and sufficient security, to the satisfaction of the person or persons acting under the authority hereby given, for his, her, or their good behaviour, during his, her, or their continuance therein." Under this statute, Mr. Gourlay, who was just about to establish his land agency, and was negotiating for a suitable house at Queenston, in which to commence business, was on the 21st of December, 1818, arrested by the Sheriff of the Niagara District, and carried before the Hon. William Dickson and the Hon. William Claus. These gentlemen were members of the Legislative Council, and bitter enemies of the unhappy man who appeared before them, though they had at one time professed much esteem for him. They adjudged that he should depart from the Province on or before the first day of January, 1819; that is to say, within ten days.

There can be but one opinion about this proceeding. It was not merely a glaring instance of oppression, but was founded upon downright rascality. In the first place, the Act of 1804 was an unconstitutional measure, under which it is doubtful whether any one could have been legally punished. But, even had it been valid, it was intended to apply to aliens, and not to loyal subjects of Great Britain, such as Mr. Gourlay undoubtedly was. He had never been asked to take the oath of allegiance, and his persecutors well knew that his loyalty was at least as sincere as their own, and far more unselfish. Moreover he had, as both Dickson and Claus were well aware, been a resident of the Province for nearly a year and a half, whereas the Act applied only to "any person or persons not having been an inhabitant or inhabitants of this Province for the space of six months." By what bribe or other means an unprincipled man named Isaac Swayze, who was a member of the Legislative Assembly, was induced to make oath that he verily believed that Robert Gourlay had not been an inhabitant of the Province for six months, and that he was an "evil-minded and seditious person," will probably never be known. An information from some quarter it was necessary to have before any decisive action could be taken, and it was furnished by this man Swayze, who had been a spy and "horse-provider" during the Revolutionary War, and who now proved his fitness for the position of a legislator by deliberate perjury.

The allotted term of ten days expired, and the proscribed personage had not obeyed the order enjoining him to quit the Province. "To have obeyed this order," says Gourlay, "would have proved ruinous to the business for which, at great expense, and with much trouble, I had qualified myself; it would have been a tacit acknowledgment of guilt whereof I was unconscious; it would have been a surrender of the noblest British right; it would have been holding light my natural allegiance; it would have been a declaration that the Bill of Rights was a Bill of Wrongs. I resolved to endure any hardship rather than to submit voluntarily. Although I had written home that I meant to leave Canada for England in a few weeks, I now acquainted my family of the cruel delay, and stood my ground." On the 4th of January, 1819, a warrant was issued by Dickson and Claus, under which he was arrested and lodged in jail at Niagara. On the 20th of the month he obtained a writ of Habeas Corpus, under which he appeared before Chief Justice Powell, at York, on the 8th of February. The Chief Justice, after hearing a short argument by an attorney on Mr. Gourlay's behalf, declined to set him at liberty, and indorsed on the writ a judgment to the effect that "the warrant of commitment appearing to be regular, according to the provisions of the Act, which does not authorize bail or mainprize, the said Robert Gourlay is hereby remanded to the custody of the Sheriff of the District of Niagara, and the keeper of the jail therein, conformable to the said warrant of commitment." The poor man was accordingly remanded to jail, where he languished for eight weary months. For some time his spirits remained buoyant, and his pugnacity unconquered. He obtained written opinions from various eminent counsel learned in the law. These counsel were unanimous in pronouncing his imprisonment illegal. Sir Arthur Pigott declared that Chief Justice Powell should have released him from imprisonment under the writ of Habeas Corpus; and further expressed his opinion that Gourlay had a good ground of action for false imprisonment against Dickson and Claus. This opinion was forthwith acted upon, and civil proceedings were instituted against both those persons. The plaintiff's painful position, however, compelled him to fight his enemies at a great disadvantage. An order was obtained by the defendants, calling upon him to furnish security for costs; which, being in confinement, he was unable to do, and the actions lapsed.

And here it becomes necessary to revert for a moment to the convention of delegates which had been held at York during the preceding year. Among the matters which the convention had had in view was the calling of the Royal attention to a promise which had been held out to the militia during the war of 1812-'15, that grants of land should be made to them in recompense for their services. It had been the policy of the United States to hold out offers of land to their troops who invaded Canada — offers without which they could not have raised an army for that purpose; and these offers had been punctually and liberally fulfilled immediately after the restoration of peace. On the British side, three years had passed away without attention to a promise which the Canadian militia kept in mind, not only as it concerned their interest, but their honour. While the convention entrusted the consideration of inquiry to the Lieutenant-Governor and Assembly, they ordered an address to be sent home to His Royal Highness the Prince Regent, as a matter of courtesy and respect, having annexed to it the rough sketch of an address originally drafted by Mr. Gourlay, as already mentioned, for the purpose of being borne home by a commission. In that sketch the neglect of giving land to the militia was, among other matters, pointed out. The sketch having been printed in America, found its way into British newspapers. In June, 1819, when Mr. Gourlay had lain more than five months in jail, the Lieutenant-Governor of Upper Canada summoned the Assembly to meet a second time, and, in his speech, notified them that he had received an order from the Prince Regent to grant land to the militia, but that he himself should think it proper to withhold such grant from those persons who had been members of the convention. The injustice of this measure was instantly in the mouth of everyone. Several weeks passed away, while it was anxiously hoped that the Assembly would mark its disapprobation of the opening speech, but approval was at last carried by the Speaker's vote, and the Legislative Council concurred in the most direct and submissive language. This was too much for Mr. Gourlay to bear with composure. He seized his pen, and liberated his mind by writing a virulent commentary upon the situation, which he procured to be published in the next issue of the Niagara Spectator. The communication was discussed by the House of Assembly, and pronounced to be a libel, and the Lieutenant-Governor was solicited to direct the Attorney-General to prosecute the editor. Sir Peregrine Maitland was not the man to turn a deaf ear to such a solicitation from such a quarter. The unfortunate editor, who had been away from home when Mr. Gourlay's diatribe was published, and who was wholly ignorant of its publication, was seized in his bed during the middle of the night, hurried to Niagara jail, and thence, next morning, to that of York, where he was detained many days out of the reach of friends to bail him. Mr. Gourlay fared worse still. His treatment was marked by a malignant cruelty to which no pen but his own can do complete justice. "After two months' close confinement," he tells us, "in one of the cells of the jail my health had begun to suffer, and, on complaint of this, the liberty of walking through the passages and sitting at the door was granted. This liberty prevented my getting worse the four succeeding months, although I never enjoyed a day's health, but by the power of medicine. At the end of this period I was again locked up in the cell, cut off from all conversation with my friends, but through a hole in the door, while the jailer or under-sheriff watched what was said, and for some time both my attorney and magistrates of my acquaintance were denied admission to me. The quarter sessions were held soon after this severe and unconstitutional treatment commenced, and on these occasions it was the custom and duty of the grand jury to perambulate the jail, and see that all was right with the prisoners. I prepared a memorial for their consideration, but on this occasion was not visited. I complained to a magistrate through the door, who promised to mention my case to the chairman of the sessions, but the chairman happened to be brother of one of those who had signed my commitment, and the court broke up without my obtaining the smallest relief. Exasperation of mind, now joined to the heat of the weather, which was excessive, rapidly wasted my health and impaired my faculties. I felt my memory sensibly affected, and could not connect my ideas through any length of reasoning, but by writing, which many days I was wholly unfitted for by the violence of continual headache. Immediately before the sitting of the assizes the weather became cool, so that I was able to apply constantly for three days, and finish a written defence on every point likely to be questioned on the score of seditious libel. I also prepared a formal protest against any verdict which might pass against me, as subject to the statute under colour of which I was confined. It was again reported that I should be tried only as to the fact of refusing to leave the Province. A state of nervous irritability, of which I was not then sufficiently aware, deprived my mind of the power of reflection on the subject; I was seized with a fit of convulsive laughter, resolved not to defend such a suit, and was, perhaps, rejoiced that I might be even thus set at liberty from my horrible situation. On being called up for trial, the action of the fresh air, after six weeks' close confinement, produced the effect of intoxication. I had no control over my conduct, no sense of consequence, nor little other feeling but of ridicule and disgust for the court which countenanced such a trial. At one moment I had a desire to protest against the whole proceeding, but, forgetting that I had a written protest in my pocket, I struggled in vain to call to mind the word protest, and in another moment the whole train of ideas which led to the wish had vanished from my mind. When the verdict was returned, that I was guilty of having refused to leave the Province, I had forgot for what I was tried, and affronted a juryman by asking if it was for sedition."